Rapanos Will Pay for Clean Water Act Violations

DETROIT, Michigan, December 30, 2008 (ENS) – In long-running case that affects the scope of federal jurisdiction over wetlands and other waters, developer John Rapanos and related defendants agreed Monday to resolve violations of the Clean Water Act at three sites in Midland and Bay counties, Michigan.

Rapanos has agreed to pay a $150,000 civil penalty and will spend an estimated $750,000 to mitigate for 54 acres of wetlands that were filled without authorization under the Clean Water Act, according to a joint statement by the Justice Department and U.S. Environmental Protection Agency.

While Rapanos did not admit doing anything wrong, he has agreed to preserve an additional 134 acres of wetlands that were unaffected by the unauthorized activity. Under the agreement, the preservation of these areas will be enforced through a conservation easement held by the state of Michigan.

“After litigating this case for a number of years, we are pleased to reach a settlement that so strongly benefits the environment and serves the public interest,” said Ronald Tenpas, assistant attorney general for the Justice Department’s Environment and Natural Resources Division.

“The settlement will benefit the environment in Bay County by preserving a substantial amount of wetlands that play a vital role in water quality, flood control and fisheries,” she said.

In the late 1980s, Rapanos filled 54 acres of wetland that he owned with sand in preparation for the construction of a mall and residences without filing for a permit from the U.S. Army Corps of Engineers. He dug an extensive network of ditches to dry out the sites, which resulted in excavated dirt being sidecast into wetlands.

A Michigan wetland, not the Rapanos property (Photo by
Dawn Ulmer)

Rapanos argued that the land was not a wetland and that he was not breaking the law, but his own consultant and state employees disagreed.

The original enforcement action was filed against Rapanos in 1994. Rapanos was convicted of two felonies for filling wetlands in violation of law in 1995. The conviction was overturned and restored several times but, in the end, he was forced to serve three years of probation and pay $5,000 in fines.

Eventually, Rapanos appealed the civil case against him, which included millions of dollars of fines, to the Supreme Court of the United States.

Rapanos challenged the EPA’s findings that the filled wetlands were under federal jurisdiction under the Clean Water Act.

The case turned on the legality of the federal regulations that define waters of the United States. The focus was on regulation of wetlands adjacent to non-navigable tributaries of traditional navigable waters and regulation of wetlands separated from such tributaries by a berm.

Rapanos’ land is 20 miles from the nearest navigable waterway, a Lake Huron tributary river. However, the term “navigable waterway” has been broadly interpreted by the U.S. Environmental Protection Agency to include areas connected to or linked to waters via tributaries or other similar means.

The 2006 Supreme Court litigation determined that Rapanos did fill wetlands under federal jurisdiction. But the Supreme Court sent the case back to the federal district court in Detroit, saying regulators might have exceeded their authority in preventing Rapanos and another landowner from developing their properties.

That ruling eventually led to Monday’s settlement.

But the Supreme Court’s 5-4 decision left the law on federal jurisdiction over waters of the United States and adjacent wetlands unclear.

The plurality opinion, authored by Justice Antonin Scalia, joined by Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts, interpreted “waters” under the Clean Water Act to be limited to “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams … oceans, rivers [and] lakes.’”

This definition does not include channels through which water flows intermittently, or channels that periodically provide drainage for rainfall.

Regarding “adjacent” wetlands, the plurality argued that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands ‘adjacent to’ such waters, are covered by the Clean Water Act.”

Chief Justice Roberts, in a concurring opinion, suggested that lower courts and regulated entities would have to “feel their way on a case-by-case basis.”

Justice John Stevens wrote a dissenting opinion in the case, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. The dissenting justices argued that the Supreme Court had previously upheld the regulation of wetlands adjacent to tributaries of navigable waters and that the court should defer to the agencies’ regulation of wetlands adjacent to non-navigable tributaries.

The Supreme Court’s deciding vote was cast by Justice Anthony Kennedy, who in a separate opinion steered a middle course between the opposing sides. Kennedy found that water draining from the Rapanos property does, in fact, flow into a stream and then into a navigable lake 20 miles away. But Kennedy said that just because water drains into a distant navigable lake is not in itself enough to trigger the wetlands protections under the Clean Water Act.

Exactly what would be sufficient remained unclear in his opinion.

Following the Supreme Court’s divided ruling in the Rapanos case, confusion has reigned among the agencies, the regulated community, and the courts over the definition of which waters are covered by the Clean Water Act.

Nevertheless, the consent decree to settle the Rapanos civil complaint was lodged Monday in the U.S. District Court in Detroit. It is subject to a 30-day comment period and final court approval. A copy of the proposed consent decree is available on the Justice Department website at www.usdoj.gov/enrd/Consent_Decrees.html.

There is a parallel criminal matter that is still pending and is not affected by the settlement under this agreement.